Kitao v 19 Twenty-two Limited Trading as 1922 (Cause E455 of 2025) [2026] KEMC 475 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E455 OF 2025** **VICTORIA MAMKA KITAO……......……….….……...……………………….CLAIMANT** **VERSUS** **19 TWENTY-TWO LIMITED** **TRADING AS 1922……………….…………………….…………………….RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant instituted these proceedings by a Statement of Claim dated 1st July 2025 seeking various remedies arising from the termination of her employment. She contends that the Respondent unlawfully and unfairly terminated her employment without following the mandatory provisions of the Employment Act, 2007. She further claims notice pay, house allowance underpayments, compensation for work performed on public holidays, compensation for unfair termination, a certificate of service, costs and interest. 2. The Respondent filed a Statement of Response dated 8th May 2026 denying liability. It maintains that the Claimant was engaged on a fixed-term contract which expired by effluxion of time on 2nd April 2025. In the alternative, the Respondent contends that if there was a termination, the same was justified by the Claimant's poor performance and misconduct and that she was accorded a fair hearing before her employment came to an end. 3. The matter proceeded to hearing. The Claimant testified on 8th December 2025 while the Respondent called one witness on 18th May 2026. Upon close of the hearing, both parties filed written submissions which the Court has carefully considered together with the pleadings, documentary evidence and applicable law. **The Claimant's Case** 1. The Claimant testified as CW-1 and adopted her witness statement together with the documents filed in support of her claim. 2. Her evidence was that she was employed by the Respondent on 2nd November 2024 as a Head Chef at the Respondent's establishment situated at Kenol, Nyali, Mombasa. She stated that she continuously discharged her duties diligently and to the satisfaction of the Respondent. 3. According to the Claimant, she earned Kshs.33,000 per month which was paid through her bank account. She testified that she was never issued with an appointment letter, written employment contract or payslips. She further stated that she was never provided with housing or paid separate house allowance. 4. The Claimant testified that on 2nd April 2025 she received a termination letter through WhatsApp terminating her employment. She stated that prior to the termination she was never issued with a notice to show cause, never informed of any allegations against her, never invited to any disciplinary hearing and was never informed of her right to be accompanied by another employee during any disciplinary proceedings. 5. She further testified that the reasons contained in the termination letter alleging poor performance were false and were never brought to her attention before the termination. 6. The Claimant further testified that owing to the nature of the Respondent's hospitality business, she worked during public holidays including Jamhuri Day, Christmas Day, Boxing Day, New Year's Day and Eid al-Fitr for twelve hours each day but was neither paid double rates nor granted compensatory off-days. 7. She consequently prayed for:- a declaration that the termination was unlawful and unfair; twelve months' compensation for unfair termination; one month's salary in lieu of notice; unpaid house allowance; payment for work performed during public holidays; certificate of service; costs and interest. **The Respondent's Case** 1. The Respondent called RW-1, Winfred Redempter Kivuva, its Manager.RW-1 testified that the Claimant was employed as a Chef and not as Head Chef. She stated that the Claimant was employed on a temporary fixed-term contract commencing on 7th December 2024 and ending on 2nd April 2025, earning a consolidated monthly salary of Kshs.31,800, which she stated included house allowance. 2. RW-1 testified that during the Claimant's employment, the Respondent experienced numerous concerns relating to her performance. She alleged that the Claimant produced poor quality meals, inconsistently presented dishes, failed to comply with recipe standards and repeatedly failed to observe company procedures and health and safety protocols. 3. RW-1 further testified that the Claimant created a hostile working environment, disrupted relations amongst kitchen staff and caused financial and reputational loss through customer complaints regarding food quality. 4. She stated that despite being given opportunities to improve, the Claimant failed to address the concerns raised. 5. RW-1 further testified that the Claimant was afforded an opportunity to respond to the allegations against her before the Respondent decided to terminate her employment on 2nd April 2025, which coincided with the expiry of the fixed-term contract. 6. During cross-examination, RW-1 conceded that:- no written contract of employment was produced before Court; no appointment letter was produced; no payslips were produced; the Claimant was not provided with housing; the invitation to the disciplinary meeting was verbal; there was no written invitation advising the Claimant of her right to be accompanied by another employee; no documentary evidence was produced demonstrating that the Claimant had been subjected to any performance improvement programme; no warning letters were produced; no suspension letters were produced; although she stated that compensatory off-days had been granted for work performed on public holidays, no attendance records or leave records were produced to support that assertion. **Parties' Submissions** 1. The Claimant submits that the Respondent failed to discharge its statutory obligations under Sections 10 and 74 of the Employment Act by failing to produce an employment contract, payslips and employment records. 2. She argues that the Respondent also failed to comply with Sections 41, 43 and 45 of the Employment Act because she was never informed of the allegations against her, never accorded a disciplinary hearing and was never given an opportunity to defend herself. 3. The Respondent on the other hand submits that the employment ended by effluxion of time upon expiry of a three-month fixed-term contract. In the alternative, it argues that there existed valid reasons for termination and that the Claimant was accorded a fair hearing. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether an employer-employee relationship existed between the parties. 3. What were the terms of the Claimant's employment. 4. Whether the employment came to an end through expiry of a fixed-term contract or termination by the Respondent. 5. Whether there existed valid and fair reasons for termination. 6. Whether the Respondent complied with the procedural requirements under the Employment Act. 7. Whether the Claimant is entitled to the reliefs sought. 8. Who should bear the costs of the suit. **Analysis and Determination** Whether an Employer–Employee Relationship Existed 1. The existence of an employment relationship is the least contested issue before the Court. The Claimant pleaded that she was employed by the Respondent as a Head Chef from 2nd November 2024. The Respondent admitted that the Claimant was employed, albeit as a Chef, and disputed only the commencement date, duration of employment, salary and terms of engagement. 2. The Respondent's witness equally confirmed that the Claimant served the Respondent and further admitted during cross-examination that the Claimant appeared on the Respondent's payroll. The Respondent also produced payroll records in support of its case. 3. Most significantly, the Respondent issued the Claimant with a letter terminating her employment. One cannot terminate the employment of a person who is not an employee. The Court therefore finds that an employer-employee relationship existed between the parties. 4. The dispute is therefore not whether the Claimant was employed, but rather the terms upon which she served and the circumstances under which the employment came to an end. What Were the Terms of Employment? 1. The parties gave conflicting evidence regarding the terms of employment. The Claimant maintained that:- she was employed on 2nd November 2024; she served as Head Chef; she earned Kshs.33,000 per month; she was never issued with a written contract; she was never issued with payslips; house allowance was never paid. 2. The Respondent maintained that:- employment commenced on 7th December 2024; the Claimant served merely as Chef; she earned Kshs.31,800 per month; the salary was consolidated; the employment was governed by a three-month written contract. 3. Ordinarily, such disputes are resolved by reference to the written employment contract and statutory employment records required under Sections 10 and 74 of the Employment Act. 4. Section 10 of the Employment Act imposes upon every employer the obligation of reducing contracts extending beyond three months into writing. The statute further places the burden upon the employer to prove disputed terms whenever no written contract is produced. 5. Similarly, Section 74 obligates employers to maintain employment records including contracts, particulars of employment, remuneration records and leave records. Despite the Respondent's repeated assertion that the Claimant served under a written fixed-term contract, no such contract was produced before Court. 6. Equally absent were:- appointment letter; payslips; attendance records; warning letters; performance appraisals; performance improvement plans; disciplinary notices; minutes of disciplinary proceedings. 7. During cross-examination RW-1 candidly admitted that none of these documents had been produced. That omission is significant. 8. The Court agrees with the reasoning adopted in Robai Musinzi v Safdar Mohamed Khan [2012] eKLR, relied upon by the Claimant, that where an employer fails to reduce employment terms into writing, the Court is left to ascertain those terms from the available evidence and any ambiguity falls against the employer who bore the statutory obligation of documenting the relationship. 9. The Respondent submitted that a written contract existed but simply was not produced. With respect, that submission cannot assist the Respondent.The burden imposed under Section 10(7) is evidential. Once the Claimant asserted that she had no written contract and the Respondent insisted one existed, it became incumbent upon the Respondent to produce it. Its failure to do so leaves the Court with only oral assertions. The Court is therefore unable to conclusively accept the Respondent's contention that there existed a written fixed-term contract containing a consolidated salary clause. 10. The Court nevertheless notes that both parties agree the employment lasted for approximately three to four months and that the Claimant was paid monthly through the banking system. 11. Regarding salary, the Claimant consistently pleaded and testified that she earned Kshs.33,000 monthly. The Respondent asserted Kshs.31,800 but similarly produced no payslips, contract or payroll extract specifically demonstrating the amount paid to the Claimant. The available bank statement filed by the Claimant supports regular salary payments approximating her pleaded salary. On a balance of probabilities, the Court is persuaded that the monthly salary payable to the Claimant was Kshs.33,000. Whether the Employment Ended by Effluxion of Time or by Termination 1. This issue forms the centrepiece of the dispute. The Respondent's principal defence is that the employment simply expired on 2nd April 2025 upon lapse of a fixed-term contract. Ordinarily, where parties freely enter into a genuine fixed-term contract, the contract naturally expires on the agreed date and there is no dismissal in the legal sense. 2. However, the facts before this Court do not comfortably support that proposition. Several matters stand out. First, the Respondent repeatedly relied upon a written fixed-term contract but elected not to produce it. Secondly, the termination letter dated 2nd April 2025 does not state that the employment had expired by effluxion of time. Instead, the letter expressly assigns reasons. 3. The letter states that the employment was terminated because of:- consistent failure to meet performance expectations; repeated violation of company policies; inability to maintain positive working relationships. Those are classic disciplinary grounds. 4. If indeed the contract had merely expired through effluxion of time, there would have been no necessity to assign reasons founded upon misconduct and poor performance. By assigning reasons, the Respondent effectively treated the cessation of employment as a disciplinary termination rather than a simple expiry of contract. 5. Thirdly, the Respondent's own pleadings advance inconsistent positions. On one hand it states that the contract simply expired. On the other hand it pleads extensive particulars of poor performance, misconduct, customer complaints, financial loss and breaches of contract, all in an effort to justify dismissal. 6. Those two positions are difficult to reconcile. The Court therefore finds that the employment did not merely expire by operation of time. Rather, the Respondent made an active decision to terminate the Claimant's employment on grounds relating to performance and conduct. The legality of that decision must therefore be measured against Sections 41, 43 and 45 of the Employment Act. Whether There Existed Valid Reasons for Termination 1. Section 43 requires an employer to prove the reasons for termination. Section 45 requires those reasons to be valid and fair. The Respondent alleged poor performance supported by:- poor food quality; inconsistent presentation; breach of recipes; violation of company policies; poor interpersonal relations; customer complaints; reputational loss. These are undoubtedly capable of constituting valid reasons if properly established. The difficulty lies in proof. 2. Apart from RW-1's oral testimony, the Court was shown no documentary material demonstrating poor performance. There were no:- warning letters; customer complaint records; kitchen inspection reports; disciplinary reports; emails; written complaints; appraisal reports; performance reviews; production reports. Equally absent was any evidence that the Claimant had ever previously been informed that her work was unsatisfactory. 3. The Court further notes RW-1's concession during cross-examination that no documentation relating to poor performance had been produced.The Court is alive to the fact that poor performance need not always be proved through documentary evidence alone. 4. Nevertheless, where an employer alleges sustained poor performance over several months, one would reasonably expect some contemporaneous record demonstrating that concerns were raised with the employee before dismissal. There is none. 5. The Respondent relied upon Churchil Winstones Ochieng v I & M Bank Ltd [2025] KEELRC 3338 (KLR) for the proposition that a Performance Improvement Plan is not mandatory in every case.That proposition is correct. 6. However, even where no formal PIP exists, an employer must still demonstrate that the employee was made aware of deficiencies and afforded a genuine opportunity to improve. No such evidence was produced. 7. Consequently, the Court finds that the Respondent has failed to discharge the burden imposed by Section 43 of proving valid and fair reasons for terminating the Claimant's employment. Accordingly, the Court finds that the termination lacked substantive justification. Whether the Respondent Complied with the Requirements of Procedural Fairness 1. Having found that the Respondent has failed to establish valid reasons for termination, the Court must now determine whether the procedure leading to the Claimant's dismissal complied with the Employment Act. 2. Section 41 of the Employment Act codifies the minimum procedural safeguards that must precede termination on grounds of misconduct, poor performance or physical incapacity. Before terminating employment, an employer must: explain to the employee, in a language the employee understands, the reasons for the contemplated termination; allow the employee to be accompanied by a fellow employee or a shop floor union representative of his or her choice; and hear and consider any representations made before arriving at a decision. These safeguards are mandatory and not optional. 3. The Claimant testified that she was never issued with a notice to show cause, never informed of the allegations against her before the decision to terminate was made, never invited to a disciplinary hearing and never informed of her right to be accompanied by another employee. 4. The Respondent disputes this assertion and maintains that an oral hearing took place. RW-1 testified that the Claimant was verbally invited to a meeting and afforded an opportunity to respond to the allegations. However, during cross-examination, RW-1 made several important concessions. She admitted that: the invitation to the meeting was verbal; there was no written invitation; there was no written notification informing the Claimant of her right to be accompanied by another employee; no minutes of the meeting were prepared; no disciplinary record was produced; no notice to show cause was issued. 5. The Respondent urged the Court to overlook these omissions and rely on the oral testimony of RW-1. While this Court accepts that disciplinary proceedings need not invariably be reduced into elaborate written minutes, an employer must nonetheless demonstrate that the statutory requirements of Section 41 were substantially complied with. In the present case, the Respondent has failed to discharge that burden. 6. Apart from the oral assertion by RW-1 that the Claimant was heard, there is absolutely no evidence demonstrating: the allegations communicated to the Claimant before the meeting; the date and venue of the alleged hearing; the persons who attended; the explanations offered by the Claimant; whether she requested representation; whether the Respondent considered her response before reaching its decision. Indeed, RW-1 candidly admitted that the procedural steps were not documented. 7. The Court is persuaded by the decisions relied upon by the Claimant in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR and Standard Group Limited v Jenny Luesby [2018] eKLR, both of which underscore that compliance with Section 41 is mandatory. An employer who fails to notify an employee of the charges, accord a meaningful opportunity to respond, and permit representation cannot be said to have complied with procedural fairness. 8. The Respondent also relied on Standard Group Limited v Jenny Luesby [2018] eKLR to urge the Court to consider procedural and substantive fairness holistically. This Court agrees with that principle. However, the same decision equally emphasises that an employee must be afforded a genuine opportunity to be heard before termination. 9. On the evidence presented, the Court is not satisfied that the Respondent complied with the mandatory requirements of Section 41. The Court therefore finds that the Claimant's employment was terminated through a procedurally unfair process. Whether the Claimant is Entitled to the Reliefs Sought 1. Having found that the Respondent failed to establish valid reasons for termination and further failed to comply with the mandatory procedural safeguards under Section 41 of the Employment Act, it follows that the termination was unfair within the meaning of Section 45 of the Act. 2. The Court now turns to each relief sought. Declaration that the Termination was Unfair 1. The Claimant has demonstrated that: the Respondent failed to prove valid reasons for termination as required under Section 43; the Respondent failed to comply with Section 41 of the Employment Act; the termination was therefore unfair under Section 45. The prayer for a declaration consequently succeeds. One Month's Salary in Lieu of Notice 1. The Respondent argues that notice was unnecessary because the contract expired by effluxion of time. This Court has already rejected that argument. The evidence establishes that the Respondent actively terminated the Claimant's employment for alleged poor performance. 2. Where termination is initiated by the employer on disciplinary grounds, Section 35 of the Employment Act applies unless lawful notice has been given. No notice was issued. The Claimant is therefore entitled to one month's salary in lieu of notice. The Court has already found that the Claimant has proved a monthly salary of Kshs.33,000. Accordingly, the Court awards: One month's salary in lieu of notice – Kshs.33,000. House Allowance 1. The Claimant seeks house allowance for five months amounting to Kshs.24,750. The Respondent argues that the monthly salary of Kshs.31,800 was consolidated and already incorporated house allowance. Section 31 of the Employment Act obligates an employer either to provide reasonable housing or to pay house allowance unless the salary expressly consolidates that allowance. 2. The Respondent bears the burden of proving consolidation because it is the party asserting the existence of such a contractual term. Unfortunately for the Respondent, no written contract containing a consolidation clause was produced. No payslips were produced. No payroll records demonstrating consolidated remuneration were produced. RW-1 also admitted that no housing was provided to the Claimant. 3. In Milkah Khakayi Kulati v Sandstorm (Africa) Limited [2014] eKLR, as well as Robai Musinzi v Safdar Mohamed Khan [2012] eKLR, the Courts held that where an employer fails to produce a written contract expressly consolidating house allowance, the Court cannot presume that the salary included that allowance. This Court respectfully adopts the same reasoning. 4. The Respondent submitted that the Claimant's pleadings were inconsistent because she sought house allowance for five months while pleading employment for approximately three months. The Court has considered that submission. 5. The evidence shows that the Claimant maintained throughout that she served from November 2024 until April 2025. Although the Respondent disputes the commencement date, the inconsistency identified is not so material as to disentitle the Claimant from the statutory benefit, particularly where the employer failed to produce the employment contract upon which it heavily relies. 6. The Court therefore finds that the Claimant has established entitlement to unpaid house allowance. The claimed sum of Kshs.24,750 is awarded. Public Holiday Pay 1. The Claimant seeks Kshs.17,522.12 being compensation for work allegedly performed during five public holidays, namely: Jamhuri Day; Christmas Day; Boxing Day; New Year's Day; and Eid-ul-Fitr. Her evidence was that she worked twelve-hour shifts on those public holidays without receiving either double pay or compensatory off-days. 2. The Respondent denies the claim. It contends that as a restaurant and hospitality establishment, it remained operational during public holidays and employees who worked on such days were granted compensatory off-days in accordance with the terms of employment. 3. The Respondent further submits that the Claimant failed to prove that she actually worked on the public holidays claimed and that RW-1's inability to produce employment records did not automatically establish the claim. 4. The Court has carefully considered the evidence. Section 74 of the Employment Act obligates every employer to maintain records relating to employees' attendance, leave and other employment particulars. The rationale behind the statutory obligation is to enable the employer to readily demonstrate compliance whenever an employment dispute arises. 5. It is not disputed that the Respondent did not produce: attendance registers; duty rosters; work schedules; leave records; compensatory off-day registers; or payroll records reflecting payment for work on public holidays. RW-1 candidly admitted during cross-examination that no records of compensatory off-days had been produced. 6. The Court agrees with the Respondent that failure to produce records does not automatically entitle an employee to every monetary claim advanced. The Claimant must still establish the factual basis of the claim. 7. In this case, however, the Court notes that the Respondent operates a restaurant within the hospitality industry. It is a matter of common knowledge that restaurants ordinarily continue operations during public holidays. The Respondent itself pleaded that the establishment remained operational on public holidays. 8. The Claimant specifically identified the public holidays she worked. Her testimony was neither shaken in cross-examination nor contradicted by any employment records. 9. Once the Claimant testified that she worked during the specified public holidays, the evidential burden shifted to the Respondent, which was statutorily obligated to maintain employment records, to demonstrate that she either received payment or was granted equivalent off-days. The Respondent failed to discharge that burden. 10. Nevertheless, the Court must also examine whether the computation has been proved.The Claimant's computation is based on an hourly formula which assumes 226 working hours per month. No contractual document, wage order or expert evidence was produced explaining the basis of that computation. 11. While the Court is satisfied that work was performed during the pleaded public holidays, it is not satisfied that the exact figure of Kshs.17,522.12 has been strictly proved. 12. Unlike compensation under Section 49 of the Employment Act, a claim for work performed on public holidays constitutes special damages, which must be specifically pleaded and strictly proved. Although the claim was specifically pleaded, the mathematical basis upon which the sum of Kshs.17,522.12 was arrived at was not sufficiently demonstrated. Accordingly, this prayer fails for want of strict proof. Compensation for Unfair Termination 1. The Claimant seeks the maximum compensation equivalent to twelve months' gross salary amounting to Kshs.455,400. The award under Section 49(1)(c) of the Employment Act is discretionary. The Court must consider the factors set out under Section 49(4), including: the employee's length of service; the manner in which termination occurred; the employee's reasonable expectation of continued employment; the employee's contribution, if any, to the termination; the practicability of reinstatement; the conduct of the employer. 2. The Respondent submitted that even if liability were established, an award of twelve months would be excessive considering that the Claimant served for only about three months. The Court agrees. 3. The evidence demonstrates that the Claimant's service was relatively short, regardless of whether one adopts the commencement date advanced by the Claimant or the Respondent. 4. The Court has also considered the decision in Standard Group Limited v Jenny Luesby [2018] eKLR, where the Court of Appeal reiterated that twelve months' salary is the statutory ceiling and not the starting point. Each case must be determined on its own facts, and the compensation awarded must remain proportionate. 5. This Court has also considered that: there was no evidence of previous disciplinary action against the Claimant; the Respondent failed to prove the allegations of poor performance; the Respondent failed to comply with the mandatory provisions of Section 41; the termination appears to have been abrupt; the Claimant undoubtedly suffered loss of employment. 6. Balancing all the relevant statutory considerations, the Court is of the view that an award equivalent to one (1) months' gross salary adequately compensates the Claimant for the unfair termination while remaining proportionate to the relatively short period of service. Accordingly, the Court awards: One (1) month's salary × Kshs.33,000 = Kshs.33,000. Certificate of Service 1. Section 51 of the Employment Act obligates every employer to issue a certificate of service to an employee upon termination of employment unless the employment falls within the statutory exceptions, which do not apply in this case. The Claimant is therefore entitled to a certificate of service. Costs and Interest 1. Costs ordinarily follow the event, and no circumstances have been shown that would justify departing from that general principle. The Claimant has substantially succeeded in her claim. She is therefore awarded the costs of the suit.The monetary awards shall attract interest at court rates from the date of this Judgment until payment in full. **Final Orders** 1. For the foregoing reasons, Judgment is entered for the Claimant against the Respondent as follows: 2. A declaration is hereby issued that the termination of the Claimant's employment was unfair and unlawful within the meaning of Sections 43 and 45 of the Employment Act, 2007. 3. One month's salary in lieu of notice: Kshs.33,000.00 4. Compensation for unfair termination equivalent to one (1) months' salary: Kshs.33,000.00 5. House allowance: Kshs.24,750.00 **Total Award: Kshs.90,750.00** 1. The claim for public holiday pay is declined for want of strict proof. 2. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of this Judgment. 3. The Claimant shall have the costs of the suit. 4. The sums awarded shall attract interest at court rates from the date of this Judgment until payment in full. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**